Delhi High Court
Rajwati vs State on 5 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 5th September, 2014
+ CRL.A. 79/2000
RAJWATI ..... Appellant
Through Mr. T.N. Saxena and Mr. H.C.
Kharbanda, Advocates along
with appellants in person
versus
STATE ..... Respondent
Through Mr. Sunil Sharma, APP
+ CRL.A. 80/2000
MAHENDER SINGH ..... Appellant
Through Mr. T.N. Saxena and Mr. H.C.
Kharbanda, Advocates along
with appellants in person
versus
STATE ..... Respondent
Through Mr. Sunil Sharma, Additional
Public Prosecutor for the State
%
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. The judgment of learned Additional Sessions Judge convicting the
appellants Rajwati for offence under Section 302/498A/34 and
Mahender for offence under Section 498A/34 Indian Penal Code is under
challenge in these appeals.
2. Harbans got married to one Vimlesh on 14.05.1997. According to
prosecution, she was harassed for dowry by her mother-in-law Rajwati
and father-in-law Mahender and was turned out of her matrimonial home
along with her husband Harbans on 16.04.1998. A complaint was made
by Vimlesh on 19.04.1998 to SHO Police Station, Gokul Puri who
directed her to approach Women Cell. Consequently, on 22.04.1998,
another complaint was submitted to Deputy Commissioner of Police,
North East District, Crime Branch Cell, Welcome, Delhi. A compromise
was entered into inter se parties on 26.05.1998 on the assurance given by
the accused persons not to harass Vimlesh and as such Vimlesh prayed
for closure of her complaint and returned back to her matrimonial home.
On 30.05.1998, she was set on fire at about 12 noon.
3. According to the prosecution, Vimlesh was pushed by her mother-
in-law over a burning kerosene stove and her father-in-law had
attempted to commit rape on her on the previous night. Information was
given to Police Station Karawal Nagar vide DD No.6. Harbans Kumar
was also informed and when he reached the house, PCR officials were
already present. Vimlesh was taken to GTB Hospital where she breathed
her last on 03.06.1998 at 4.15 am. It was found that she had suffered
100% burns, but before that, her dying declaration was recorded by
PW13 - Mr. Vinay Bhushan, SDM. According to prosecution, before
recording this dying declaration, an opinion was taken about her fitness.
Nineteen (19) witnesses were examined at the trial including her
relatives, husband, Investigating team, Magistrate and the doctor. The
learned Trial Court convicted both the appellants as mentioned
hereinbefore, while acquitting Mahender Singh of the charge under
Section 376/511 of Indian Penal Code.
4. The defence taken by the appellants was that of denial. The
appellant Rajwati took a plea of alibi by stating that she was not at home
at the time of incident and had gone to the market to purchase
vegetables. It was also stated that the deceased was staying separately
with her husband at the first floor of the house. She wanted transfer of
the house in her name. Two witnesses were examined in defence.
5. The defence pleaded by the appellants did not prevail and that is
how the appellants are before us.
6. The main thrust of arguments of learned counsel for the appellants
was against the dying declaration. It was claimed that dying declaration
is not voluntary. Learned counsel for the appellants earnestly argued that
there were some intrinsic defects in the dying declaration which
militated against its credibility. It was pointed out that Vimlesh had
suffered 100% burn injuries and, therefore, it was not possible that she
would be in her senses while making dying declaration or would be in a
position to thumb mark the same. It was further pointed out that before
recording her dying declaration, her fitness to make statement was not
ascertained and the dying declaration was not attested by any doctor.
Reference was made to the MLC where the word "multi gravida" was
mentioned to show that Vimlesh had already given birth to a child and
was again pregnant. Lastly, it was pointed out that there was no
kerosene oil residue detected on the clothes/ articles which were seized.
It was also suggested that the evidence of Smt. Chandrawati and Girish
Babu who claimed that an oral dying declaration was made to them, was
also not reliable because of material improvements.
7. Before we proceed to consider the contentions raised at the Bar
and independently scrutinize the relevant evidence brought on record, it
is fruitful to recapitulate the law and enunciation of Hon‟ble Supreme
Court pertaining to dying declaration in Bhajju @ Karan Singh v State
of M.P. 2012 Crl.L.J. 1926 wherein it was held as under:-
"10. The law is very clear that if the dying declaration has been recorded in
accordance with law, is reliable and gives a cogent and possible explanation
of the occurrence of the events, then the dying declaration can certainly be
relied upon by the Court and could form the sole piece of evidence resulting in
the conviction of the accused. This Court has clearly stated the principle that
Section 32 of the Indian Evidence Act, 1872 (for short `the Act') is an exception
to the general rule against the admissibility of hearsay evidence. Clause (1) of
Section 32 makes the statement of the deceased admissible, which is
generally described as a `dying declaration'. The `dying declaration'
essentially means the statement made by a person as to the cause of his
death or as to the circumstances of the transaction resulting into his death.
The admissibility of the dying declaration is based on the principle that the
sense of impending death produces in a man's mind, the same feeling as that
the conscientious and virtuous man under oath. The dying declaration is
admissible upon the consideration that the declaration was made in
extremity, when the maker is at the point of death and when every hope of
this world is gone, when every motive to file a false suit is silenced in the mind
and the person deposing is induced by the most powerful considerations to
speak the truth. Once the Court is satisfied that the declaration was true and
voluntary, it undoubtedly can base its conviction on the dying declaration,
without requiring any further corroboration. It cannot be laid down as an
absolute rule of law that the dying declaration cannot form the sole basis of
conviction unless it is corroborated by other evidence.
11. There is a clear distinction between the principles governing the evaluation
of a dying declaration under the English law and the Indian law. Under the
English law, credence and relevancy of a dying declaration is only when the
person making such a statement is in hopeless condition and expecting an
imminent death. So under the English law, for its admissibility, the declaration
should have been made when in the actual danger of death and that the
declarant should have had a full apprehension that his death would ensue.
However, under the Indian law, the dying declaration is relevant, whether
the person who makes it was or was not under expectation of death at the
time of such declaration. The dying declaration is admissible not only in the
case of homicide but also in civil suits. The admissibility of a dying
declaration rests upon the principle of nemo meritorious praesumuntur
mentiri (a man will not meet his maker with a lie in his mouth).
12. The law is well-settled that a dying declaration is admissible in evidence
and the admissibility is founded on the principle of necessity. A dying
declaration, if found reliable, can form the basis of a conviction. A Court of
facts is not excluded from acting upon an uncorroborated dying declaration
for finding conviction. The dying declaration, as a piece of evidence, stands
on the same footing as any other piece of evidence. It has to be judged and
appreciated in light of the surrounding circumstances and its weight
determined by reference to the principle governing the weighing of evidence.
If in a given case a particular dying declaration suffers from any infirmity,
either of its own or as disclosed by the other evidence adduced in the case or
the circumstances coming to its notice, the Court may, as a rule of prudence,
look for corroboration and if the infirmities are such as would render a dying
declaration so infirm that it pricks the conscience of the Court, the same may
be refused to be accepted as forming basis of the conviction.
13. Another consideration that may weigh with the Court, of course with
reference to the facts of a given case, is whether the dying declaration has
been able to bring a confidence thereupon or not, is it trust-worthy or is
merely an attempt to cover up the latches of investigation. It must allure the
satisfaction of the Court that reliance ought to be placed thereon rather than
distrust.
14. In regard to the above stated principles, we may refer to the judgments of
this Court in the cases of Ravikumar @ Kutti Ravi v. State of Tamil Nadu
(2006) 9 SCC 240, Vikas and Others v. State of Maharashtra (2008) 2 SCC 516,
Kishan Lal v. State of Rajasthan (2000) 1 SCC 310, Laxmi (Smt.) v. Om Prakash
& Ors. (2001) 6 SCC 118, Panchdeo Singh v. State of Bihar (2002) 1 SCC 577.
15. In the case of Jaishree Anant Khandekar v. State of Maharashtra (2009) 11
SCC 647, discussing the contours of the American Law in relation to the `dying
declaration' and its applicability to the Indian law, this Court held as under: -
"24. Apart from an implicit faith in the intrinsic truthfulness of human
character at the dying moments of one's life, admissibility of dying
declaration is also based on the doctrine of necessity. In many cases victim is
the only eyewitness to a crime on him/her and in such situations exclusion of
the dying declaration, on hearsay principle, would tend to defeat the ends of
justice.
25. American law on dying declaration also proceeds on the twin postulates
of certainty of death leading to an intrinsic faith in truthfulness of human
character and the necessity principle. On certainty of death, the same strict
test of English law has been applied in American jurisprudence. The test has
been variously expressed as "no hope of recovery", "a settled expectation of
death". The core concept is that the expectation of death must be absolute
and not susceptible to doubts and there should be no chance of operation of
worldly motives."
16. It will also be of some help to refer to the judgment of this Court in the
case of Muthu Kutty and Another v. State by Inspector of Police, T.N., (2005) 9
SCC 113 where the Court, in paragraph 15, held as under:-
"15. Though a dying declaration is entitled to great weight, it is
worthwhile to note that the accused has no power of cross-examination.
Such a power is essential for eliciting the truth as an obligation of oath
could be. This is the reason the court also insists that the dying declaration
should be of such a nature as to inspire full confidence of the court in its
correctness. The court has to be on guard that the statement of the
deceased was not as a result of either tutoring, or prompting or a product
of imagination. The court must be further satisfied that the deceased was
in a fit state of mind after a clear opportunity to observe and identify the
assailant. Once the court is satisfied that the declaration was true and
voluntary, undoubtedly, it can base its conviction without any further
corroboration. It cannot be laid down as an absolute rule of law that the
dying declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule of prudence.
This Court has laid down in several judgments the principles governing
dying declaration, which could be summed up as under as indicated in
Paniben v. State of Gujarat [(1992) 2 SCC 474 : 1992 SCC (Cri) 403 : AIR
1992 SC 1817] (SCC pp. 480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration
cannot be acted upon without corroboration. (See Munnu Raja v. State
of M.P.)
(ii) If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration. (See State
of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.)
(iii) The Court has to scrutinise the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting or
imagination. The deceased had an opportunity to observe and identify
the assailants and was in a fit state to make the declaration. (See K.
Ramachandra Reddy v. Public Prosecutor)
(iv) Where dying declaration is suspicious, it should not be acted upon
without corroborative evidence. (See Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any
dying declaration the evidence with regard to it is to be rejected. (See
Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the
basis of conviction. (See Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as
to the occurrence, it is not to be rejected. (See State of Maharashtra v.
Krishnamurti Laxmipati Naidu.)
(viii) Equally, merely because it is a brief statement, it is not to be
discarded. On the contrary, the shortness of the statement itself
guarantees truth. (See Surajdeo Ojha v. State of Bihar.)
(ix) Normally the Court in order to satisfy whether deceased was in a fit
mental condition to make the dying declaration look up to the medical
opinion. But where the eyewitness said that the deceased was in a fit
and conscious state to make the dying declaration, the medical opinion
cannot prevail. (See Nanhau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version as given in the
dying declaration, the said declaration cannot be acted upon. (See
State of U.P. v. Madan Mohan.)
(xi) Where there are more than one statement in the nature of dying
declaration, one first in point of time must be preferred. Of course, if the
plurality of dying declaration could be held to be trustworthy and
reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State
of Maharashtra.)"
8. Coming to the factual matrix of the case, as per the prosecution
case on 30.05.1998, Vimlesh was brought to GTB Hospital by her
husband Harbans. Sub Inspector Chander Bhan informed PW13 Mr.
Vinay Bhushan, SDM, who reached GTB Hospital and recorded
statement of Vimlesh Ex.PW13/A which bears her thumb impression.
The statement was recorded in question-answer form and is to the
following effect:
"Q. What is your name?
A. Vimlesh.
Q. What is the name of your husband?
A. Harbans Kumar
Q. Where do you reside?
A. Krishna Nagar
Q. When were you married?
A. One year back.
Q. Have you children?
A. No.
Q. Who are in your family?
A. Mother-in-law, father-in-law, Dever and two sisters in law and
my husband.
Q. How did you get burnt?
A. I had shown a match stick to the stove at about 12:00 noon
today to prepare tea. My mother-in-law poured kerosene oil
on me from back and pushed me towards the stove and I got
burnt.
Q. What happened thereafter?
A. My mother-in-law thereafter went out, closed the latch
(kundi) and firmly held the doors and did not allow me to
come out. Thereafter I shouted. Mohallawalas came and
saved me.
Q. Who was present at the house at the time of incident?
A. Only my mother-in-law and all others were out.
Q. Why did mother-in-law burn you?
A. My father-in-law had tried to do 'Galat Kam' with me
yesterday night. I told my mother-in-law about this. She said
that I was making the allegations against her husband and
she would take revenge.
Q. Who used to harass you?
A. My mother-in-law and father-in-law harassed me. They beat
me. We live in one house. Mess is separate.
Q. Why do your mother-in-law and father-in-law harass you?
A. They asked me to bring scooter and Rs.20,000/-.
Q. Did your husband ever demanded money or harassed you?
A. No. He keeps me properly.
Q. Did you tell yesterday's incident to your husband?
A. Yes. There was a serious quarrel between my husband and
my father-in-law.
Q. Have you to say anything more?
A. Do not spare my mother-in-law and father-in-law. My father-
in-law had tried to do 'galat kam' with me several times and
my mother-in-law burnt me."
9. According to SDM, he did not specifically enquire from the
patient whether she was mentally fit to give her statement, however, he
himself assured that by way of talking she was well-oriented and fit for
making statement. Although he did not get the fitness certificate of the
doctor on the statement, but according to him, the same was taken on
MLC. Even according to PW3 Dr. V.K. Jain, who examined the patient
and prepared her MLC Ex.PW3/A, the patient was conscious and well-
oriented. She was fit for statement.
10. What impresses us most about the dying declaration is that firstly
it has been recorded by an independent witness like PW13 Mr. Vinay
Bhushan, who was working as SDM Shahdara and secondly, before it
commenced, the Magistrate had satisfied himself about the ability of
Vimlesh to make a dying declaration. The said dying declaration is in
question-answer form and we do not see any suggestive question having
been put to the witness. Moreover, there was no question of tutoring the
witness as it has come in the statement of witnesses that as per practice,
at the time of recording statement, no one else is allowed to remain in the
room and everybody was directed to go out, so much so, even no doctor
or nurse was there.
11. As regards the submission of the learned counsel for the appellant
that since the deceased had 100% burn injuries, she would not have been
in a position to make a statement, same again is devoid of merit. This
precise issue was considered by Hon‟ble Supreme Court in State of MP
vs. Dal Singh & Ors.,(2013)14 SCC 159 and the question for
consideration in that case also was whether a 100% burnt person can
make a dying declaration or put a thumb impression. In that case,
reliance was placed on Mafabhai Nagarbhai Raval vs. State of Gujarat, AIR
1992 SC 2186, where also question arose with respect to whether a
person suffering from 99% burn injuries could be deemed capable enough
for the purpose of making a dying declaration. The learned Trial Judge
thought that the same was not at all possible as the victim had gone into
shock after receiving such high degree burns. The moment the deceased
had seen the flame, she was likely to have sustained mental shock.
Development of such shock was the ground on which the Trial Court had
disbelieved the medical evidence. It was held that the Doctor who had
conducted her post-mortem was a competent person and had deposed in
this respect. Therefore, unless there existed some inherent and apparent
defect, the Court could not have substituted its opinion for that of the
doctor‟s. Hence in the light of the facts of the case, the dying
declaration made was found to be worthy of reliance, as the same had
been made truthfully and voluntarily. There was no evidence on record
to suggest that the victim had provided a tutored version and the
argument of the defence stating that condition of deceased was so serious
that she could not have made such a statement was not accepted, and
dying declarations were relied upon. Similar view was reiterated in
Rambai vs. State of Chhatisgarh, (2002) 8 SCC 83.
12. In view of the same, the mere fact that Vimlesh had suffered 100%
burn injuries, no inference could be drawn that she was incapable of
making a dying declaration. This is more particularly so because MLC
Ex.PW3/A of Vimlesh was prepared by PW3 Dr. V.K. Jain. As per the
MLC, the patient was brought by her husband Harbans, son of Mahender
Singh. The alleged history was given by the informant himself to the
following effect:
"Alleged history of burn by being pushed by mother-in-law over a burning
kerosene stove" alleged history of "rape yesterday night by father-in-law."
13. On examination, doctor found the patient to be conscious and
well-oriented. She was fit for making statement. There is no challenge to
his testimony that Vimlesh was not in a fit condition to make statement.
Vimlesh has been consistent throughout, firstly at the time when doctor
asked her as to how she sustained injuries and secondly when she made a
dying declaration before the SDM.
14. A vague attempt was made to assassinate the character of Vimlesh
by emphasising on the word „multi gravida‟ appearing in the MLC
Ex.PW 3/A for submitting that „multi gravida‟, as per Dr. V.K. Jain
means „a lady who has given birth to more than one child and is again
pregnant‟. It is a matter of record that the marriage itself has taken place
on 14th May, 1997 and the unfortunate incident had taken place on 30 th
May, 1998, meaning thereby within 12½ months of the marriage,
Vimlesh met her untimely death. At that time, she was not pregnant. It
has also come on record that no issue was born out of wedlock of
Vimlesh and Harbans. In any case, this fact has no bearing on the case.
15. Lastly, a point was raised by learned counsel for the appellants
that prosecution has failed to prove that kerosene oil was poured on
Vimlesh as a result of which she died. It is to be seen that seizure of one
kerosene stove, one plastic can in burnt condition, one saree in burnt
condition vide memo Ex.PW19/C was proved by PW19 SI Chander
Bhan Singh. PW4 Dr. K.K. Banerjee, who conducted post-mortem on
the dead body of deceased Vimlesh had handed over scalp hair and
vaginal swab and slides duly preserved and sealed to the Investigating
Officer of the case who seized the same vide memo Ex.PW11/A.
According to the Investigating Officer, he had sent the seized articles to
FSL, Malviya Nagar but the same were not accepted by the laboratory as
they were not having the facility of chemical analysis for kerosene.
Although, according to him, permission was obtained by him from DCP,
Crime for sending the exhibits to CFSL, Hyderabad, but the same were
not sent till he came to depose in the Court on 18.12.1999. This reflects
the casual and callous attitude of the Investigating Officer in carrying out
its most solemn duty of conducting fair, honest, flawless and scientific
investigation into the crime but that cannot furnish a ground for acquittal
of accused.
16. In Ram Bihari Yadav Vs. State of Bihar, AIR 1998 SC 1850, it
was held by Hon'ble Supreme Court that if primacy is given to the
omissions or lapses by perfunctory investigation by the investigating
agency, the faith and confidence of people would be shaken not only in
law enforcing agency, but also in the administration of justice. It is true
if on account of any lapse doubts are created in prosecution case, the
accused would be entitled to the benefit of that doubt. But, if the
prosecution is able to establish its case beyond reasonable doubt against
the accused inspite of lapses, the accused cannot be acquitted because of
the lapse on the part of investigating officer. Substantially similar view
was taken in C. Muniappan and others vs. State of Tamilnadu, (2010) 9
CC 567 where it was held that the defect in investigation by itself cannot
be a ground for acquittal. If primacy is given to such design or negligent
investigation or to the omissions or lapses by perfunctory investigation,
the faith and confidence of people in criminal justice administration
would be eroded. Where there has been negligence on the part of
investigating agency or omissions etc which resulted in defective
investigation, there is a legal obligation on the part of the Court to
examine the prosecution evidence de hors such lapses carefully to find
out whether said evidence is reliable or not or to what extent it is reliable
and as to whether such lapses affected the object of finding out the truth.
Therefore, the investigation is not the solitary area for judicial scrutiny in
a criminal trial. The conclusion of trial in the case cannot be allowed to
depend solely on the probity of investigation.
17. A careful reading of the dying declaration made by deceased
Vimlesh goes to show that the same is voluntary, truthful, made in
conscious state of mind, without being influenced by the relatives and
the investigating agency. That being so, it can be acted upon and can be
made the basis of conviction. Moreover, her statement finds
corroboration from the oral testimony of the witnesses.
18. On receipt of information regarding admission of Vimlesh in
hospital, her parents Smt. Chandrawati and Girish Babu reached
hospital. According to PW1 Chandrawati, her daughter informed her that
her father-in-law tried to commit rape upon her by tearing her blouse.
When she disclosed this fact to her husband, there was a quarrel in the
house. She also informed her that when her father-in-law attempted to
commit rape on her, she confided to her mother-in-law. As a reaction to
that, her mother-in-law threatened her to set her on fire if she complained
about it. Next day, when her husband had gone for his work, her
mother-in-law poured kerosene oil on her and set her on fire. In cross-
examination, however, she tried to improve her version by deposing that
Vimlesh told her that her father-in-law poured kerosene oil on her and
her mother-in-law set her on fire. Even father of the deceased, Girish
Babu has deposed that Vimlesh informed him that both the accused set
her on fire by pouring kerosene oil. As such, although in the statements
of mother and father of the deceased, complicity of father-in-law in the
crime is also tried to be established, but in view of the fact that this fact
does not find mention in the initial history given by the deceased to Dr.
V.K. Jain and subsequently in her dying declaration made before Shri
Vinay Bhushan SDM, only mother-in-law was charge-sheeted for
offence under Section 302 of Indian Penal Code and was rightly
convicted by learned Trial Court.
19. Further, as per the information given by Dr. K.K. Banerjee, who
conducted the post-mortem examination, the cause of death was
septicaemia as a result of superficial deep ante mortem burn injuries
covering 100% body surface. As per dying declaration, Vimlesh had
shown a match stick to the stove in order to prepare tea. Her mother-in-
law poured kerosene oil on her from the back and pushed her towards the
stove and she got burnt. The unfortunate incident has taken place within
the matrimonial home. Harbans, husband of the deceased, had gone for
his work, as such, only her in-laws were available in the house at the
time of incident. Hence, it was for them to explain as to how Vimlesh
sustained burn injuries. Such explanation could have been given by them
when all the incriminating evidence was put to them while recording
their statements under Section 313 of Code of Criminal Procedure or by
way of eliciting answer in cross examination of prosecution witnesses or
by examining themselves under Section 315 Cr.PC or by leading defence
evidence.
20. As regards eliciting answers by way of cross-examination of
prosecution witnesses or suggestions given to them, a perusal of record
goes to show that various suggestions were given to the prosecution
witnesses, which were denied by them. PW1 Chandrawati denied that
her daughter did not tell her about attempt of rape by her father-in-law or
that she had made a false story in order to malign him. She also denied
that the deceased was harassing the accused persons and was compelling
them to transfer the house in her name or that when they did not oblige
her, she committed suicide. She also denied that she being the step-
mother had been ill-treating her when she visited her house or that she
tried to kill her by administering poison or that she (deceased) was fed
up by her conduct and day-to-day interferences in her married life and,
therefore, committed suicide. PW6 Girish Babu also denied the
suggestion that Chandrawati used to torture Vimlesh or that Vimlesh was
fed up with the misbehaviour of his wife or that Chandrawati had
administered "chuhe marne wali dava" to her and her stepmother had
once tried to hang her with the ceiling fan and tried to kill her. PW5
Maya Devi tried to support the defence story by deposing that Vimlesh
wanted transfer of house in her name but her father-in-law did not
oblige. She also supported the defence of accused persons regarding
attempt to murder Vimlesh by Smt. Chandrawati, by administering
"chuhe marne wali dava" and by hanging of Vimlesh. The suggestion
given to the prosecution witnesses were denied by them and the
testimony of Maya Devi does not inspire confidence inasmuch as she
was only a witness to the arrest of accused Rajwati on 31.05.1998 and
her personal search taken vide memo Ex.PW5/A. However, in her cross
examination she tried to favour the accused persons by deposing on the
lines as suggested by them. If the relations between Vimlesh and
Chandrawati were so much strained that she attempted to take her life by
administering poison or by hanging her, there would have been no
occasion for Vimlesh and her husband Harbans to go to her parents‟
house when they were turned out by the accused persons.
21. Coming to the stand of the appellants taken in their statements
recorded under Section 313 Cr.PC, appellant Mahender has absolutely
not given any explanation as to how Vimlesh sustained injuries.
However, appellant Rajwati has taken a plea of alibi by stating that she
had gone to the market to purchase vegetables. When an alibi is set up,
the burden is on the accused to lend credence to the defence put up by
him/her.
22. Explaining the essence of a plea of alibi, it was observed in Dudh
Nath Pandey v. State of U.P., (1981) 2 SCC 166 that:
"The plea of alibi postulates the physical impossibility of the presence of the
accused at the scene of offence by reason of his presence at another place.
The plea can therefore succeed only if it is shown that the accused was so far
away at the relevant time that he could not be present at the place where
the crime was committed."
23. This was more elaborately explained in Binay Kumar Singh v.
State of Bihar, (1997) 1 SCC 283 in the following words:
"22. We must bear in mind that an alibi is not an exception (special or
general) envisaged in the Indian Penal Code or any other law. It is only a rule
of evidence recognised in Section 11 of the Evidence Act that facts which are
inconsistent with the fact in issue are relevant."
"23. The Latin word alibi means "elsewhere" and that word is used for
convenience when an accused takes recourse to a defence line that when the
occurrence took place he was so far away from the place of occurrence that it
is extremely improbable that he would have participated in the crime. It is a
basic law that in a criminal case, in which the accused is alleged to have
inflicted physical injury to another person, the burden is on the prosecution to
prove that the accused was present at the scene and has participated in the
crime. The burden would not be lessened by the mere fact that the accused
has adopted the defence of alibi. The plea of the accused in such cases need
be considered only when the burden has been discharged by the prosecution
satisfactorily. But once the prosecution succeeds in discharging the burden it
is incumbent on the accused, who adopts the plea of alibi, to prove it with
absolute certainty so as to exclude the possibility of his presence at the place
of occurrence. When the presence of the accused at the scene of occurrence
has been established satisfactorily by the prosecution through reliable
evidence, normally the court would be slow to believe any counter-evidence to
the effect that he was elsewhere when the occurrence happened. But if the
evidence adduced by the accused is of such a quality and of such a standard
that the court may entertain some reasonable doubt regarding his presence at
the scene when the occurrence took place, the accused would, no doubt, be
entitled to the benefit of that reasonable doubt. For that purpose, it would be
a sound proposition to be laid down that, in such circumstances, the burden
on the accused is rather heavy. It follows, therefore, that strict proof is
required for establishing the plea of alibi."
24. In order to substantiate this plea, accused Rajwati examined two
defence witnesses, namely, DW1 Gajraj Singh and DW2 Kalyan Singh.
Both these witnesses have deposed that on hearing the noise in the street
"aag lag gai" they rushed to the house of Mahender where they found
wife of Harbans lying burnt in the courtyard. At that time, none of the
family members of Mahender were present. When PCR officials were
putting Vimlesh in police vehicle, Rajwati came from the market after
purchasing vegetables. It is pertinent to note here that it is not the case of
appellant Mahender, that at the time of incident, he was not present at the
house. Testimony of DW1 was rightly not believed by learned Trial
Court by observing that he was a neighbour who admitted in cross
examination that prior to his statement in the Court on 21.01.2000, he
never approached the Investigating Officer or any other senior police
officer or any other authority to state that he had seen the occurrence. He
had not even accompanied Vimlesh and Harbans Kumar to the hospital.
He also could not say as to how Vimlesh sustained burn injuries because,
according to him, he came at the scene when she was already burnt.
Presence of DW2 Kalyan Singh at the spot was highly doubtful
inasmuch as, as per his own version, he was working in a factory at Sita
Ram Bazar. His duty hours were from 10 am to 6.30/7.00 pm. The
incident took place on 30th May, 1998 at around 12 noon. It was a
Saturday, as such, there was no occasion for him to be present at the
house. Under the circumstances, the plea of alibi setup by the appellant
Rajwati is not established.
25. In view of the foregoing, the prosecution had succeeded in
establishing beyond reasonable doubt that it was accused Rajwati who
pushed Vimlesh on a burning stove and poured kerosene oil, as a result
of which she sustained 100% burn injuries and later succumbed to her
injuries. That being so, she was rightly convicted by learned Additional
Sessions Judge for offence under Section 302 IPC.
26. Coming to Section 498A Indian Penal Code, it was amended by
Criminal Law Amendment Act, 1983 with a view to deal with menace of
dowry deaths. Explanation appended to the Section defines cruelty. As
per Explanation (b) "cruelty" means harassment of the woman where
such harassment is with a view to coercing her or any person related to
her to meet any unlawful demand for any property or valuable security
or is on account of failure by her or any person related to her to meet
such demand.
27. Adverting to the case in hand, the dying declaration made by the
deceased reflects the treatment which was meted out to her by the
accused persons. She has specifically stated before the SDM that she was
harassed by her mother-in-law and father-in-law as they used to ask her
to bring scooter and Rs.20,000/-.
28. This dying declaration finds substantial corroboration from the
oral testimony of the witnesses and documentary evidence.
29. PW1 Chandrawati, mother of the deceased, has deposed that after
a week of her marriage, when Vimlesh came to her house, she informed
her that her mother-in-law and father-in-law were demanding a colour
TV and Rs.20,000/- cash. She further informed her that she was being
tortured and beaten for this reason. Her husband along with some of the
relatives had gone to the house of accused persons in order to take
Vimlesh with them on the eve of Raksha Bandhan, but accused persons
refused to send her till their demands are met, as such, her husband and
relatives returned back without taking her. After few days, she was
again beaten by both the accused persons. Her daughter and her husband
were forced to leave the house by the accused persons till their demands
were fulfilled. As such, a complaint was made at PS Gokal Puri and
thereafter at CAW Cell. Initially, the accused did not attend the hearing
at CAW cell, but thereafter they attended the proceedings and promised
not to demand any dowry from Vimlesh and her husband. As such, the
matter was compromised. She was taken to her matrimonial home by
the accused persons and after 2-3 days, this incident had taken place.
30. Her testimony in this regard finds substantial corroboration from
PW6 Girish Babu who has also deposed that at the time of marriage
there was no demand of dowry but thereafter accused Mahender and
Rajwati started demanding colour TV, Rs.20,000/- and scooter first
from Vimlesh and thereafter from him. He had gone to the house of
accused persons before Raksha bandhan in the year 1997. However,
both the accused persons refused to send her. Accused Mahender also
demanded the aforesaid articles and cash of Rs.20,000/- from him on that
date. Rajwati also told him that they would send Vimlesh to her parents‟
house only if they meet their demands. Thereafter, he returned from
there. Later on, he went to the house of accused along with some of his
relatives in order to pacify them and also told them that he was not in a
position to meet such high demands, but the accused persons were not
ready to listen to him. He further deposed that on 16.04.1998, Vimlesh
was turned out of her house by the accused persons. Harbans along with
Vimlesh came to his house and informed him that they have been turned
out of the house and would be allowed to stay only if they would bring
the aforesaid articles. He advised Harbans to contact his relatives as his
own parents were harassing them. Thereafter, Harbans contacted his
grandfather and uncle, but they refused to interfere by stating that
accused Mahender would not listen to anyone. Thereafter, a complaint
was made by Harbans and Vimlesh on 19.04.1998 at Police Station
Gokul Puri and then to CAW Cell. Initially, the accused persons did not
attend the proceedings, but later on they attended the proceedings and
gave in writing that they would not further harass or beat Vimlesh nor
would demand any dowry. The matter was got compromised and after a
week or so i.e. on 30.05.1998, Vimlesh was burnt.
31. The ocular testimony of both these witnesses finds corroboration
from documentary evidence. PW17 - SI Dushyant Singh was posted at
CAW Cell, Seelam Pur on 23.04.1998. This witness has deposed that on
23.04.1998, he received a complaint Ex.PW17/A and Ex.PW17/B given
by Vimlesh alleging torture and harassment and demand of dowry,
particularly scooter by her in-laws i.e. Rajwati and Mahender. During the
course of enquiry and proceedings in CAW Cell, on persistence of
accused persons, Vimlesh, although reluctant to go back to her
matrimonial home but at last agreed and thereafter the accused persons
took her to their house after giving an assurance in writing that she
would live with her husband separately and the accused persons will
have no interference. In view of the compromise, Vimlesh requested to
close her complaint. On 30.05.1998, father of the deceased informed
CAW Cell regarding death of Vimlesh.
32. Learned counsel for the appellants, however, relied upon the
testimony of PW5 Maya Devi. Maya Devi was a neighbour, whose
house was situated in front of the house of the accused persons. In cross
examination, she deposed that she was informed by Vimlesh that there
was no demand of dowry by her in-laws or husband. He also referred to
the statement of her husband PW7 Harbans who deposed that after two
months of marriage, he started living separately at House No.359, Nand
Nagri as Vimlesh was asking him to stay at her parents‟ house and she
also insisted for transfer of the house in her name. After staying for 2-4
days at Nand Nagri, he returned back to his parents‟ house and started
living there. He went to the house of parents of deceased to take her
back, but she refused to come till the house is transferred in her name.
He further went on to depose that even parents of deceased had asked
him to transfer the house in her name. He talked to his father who told
him that he cannot transfer the house in his name till the time his other
brothers would become major. He went to the extent of deposing that he
went to her parents‟ house and informed his mother-in-law that house
could not be transferred in her name. Thereupon he was given beatings
by her. The witness as such did not support the case of the prosecution
and turned hostile. In cross examination by learned Additional Public
Prosecutor for the State, he denied the suggestion that after marriage his
mother and father used to demand Rs.20,000/-, TV, VCR from Vimlesh
and started harassing her and also denied that on 16.04.1998, they were
turned out of the house by the accused persons for non-fulfilment of
dowry demands. He also denied that any complaint was made to CAW
Cell against his parents for demand of dowry and harassment. However,
when the attention of the witness was drawn to the copy of the complaint
mark PX, then he admitted that the same bears his signatures at point „X‟
and that of Vimlesh at point „Y‟. He also admitted that accused persons
had given in writing in CAW Cell that they would not harass Vimlesh
any further nor would demand any dowry from her and would keep her
safe with them. He also admitted that due to their complaint at CAW
Cell, this assurance was given by the accused persons in writing.
33. The law regarding hostile witnesses is well settled that the
evidence of a prosecution witness who has been declared hostile by the
prosecution cannot be rejected in toto merely because the prosecution
chose to treat him hostile and cross-examine him. The evidence of such
witness cannot be treated as effaced or washed off the record altogether
but the same can be accepted to the extent their version is found to be
dependable on a careful scrutiny thereof vide Bhagwan Singh vs. State
of Harayana, (1976) 1 SCC 389; Robinder Kumar Dey vs. State of
Orissa, (1976) 4 SCC 233; Khujji vs. State of M.P.,(1991) 3 SCC 627;
Rameshbhai Mohanbhai vs. State of Gujarat, (2011) 3 SCC.
34. This being the legal position, the mere fact that PW Harbans has
been declared hostile is not sufficient to discard his testimony altogether
and that much part of the testimony which supports the prosecution can
be read in evidence. Harbans Kumar, who initially had lodged a
complaint against his parents regarding harassment being meted out to
his wife Vimlesh by them on account of non-fulfilment of dowry has
now turned hostile because the accused persons are none else but his
own parents and he is now living with them and, therefore, he deposed
that Vimlesh was never harassed by any of the accused nor any dowry
was demanded, but as the saying goes- "a man may tell a lie but not the
circumstances". He admitted filing of a complaint jointly by him and
Vimlesh against the accused persons before the police and CAW Cell,
which ultimately was compromised on the assurance given by the
accused persons. The same amply proves that Vimlesh was harassed by
the accused persons on account of non-fulfilment of their demand of
dowry.
35. Furthermore, accused Mahender in his statement under Section
313 Cr.PC although denied that any dowry item was demanded from
Vimlesh or she was harassed, but it was admitted by him that a joint
complaint Ex.PW17/A was made by the deceased Vimlesh and her
husband Harbans to SHO Gokul Puri regarding harassing Vimlesh to
bring Rs.20,000/-, TV, etc. He also admitted that a similar complaint
dated 22.04.1998 Ex.PW17/B was made by Vimlesh to DCP, North East
District, Crime Branch Women Cell, Welcome on the direction of police.
He also admitted that a compromise was entered into between him and
his wife on the one hand and Girish Babu, Harbans and Vimlesh on the
other hand wherein it was mentioned that he will not interfere in the life
of Vimlesh and Harbans Kumar.
36. In view of the above discussion and our appraisal and analysis of
the evidence on record, we have no hesitation to hold that prosecution
had successfully established its case by cogent, clear and reliable
evidence. That being so, the learned Trial Court rightly convicted the
appellant Rajwati for offences under Section 302/498A/34 IPC and
appellant Mahender for offences under Section 498A/34 IPC. The
finding does not suffer from any infirmity which calls for any
interference.
37. The appeals, being devoid of merit, are hereby dismissed.
38. Sentence of appellant Mahender was suspended vide order dated
24.05.2000 and sentence of appellant Rajwati was suspended vide order
dated 20.04.2005. As such, they are directed to surrender within three
days in order to serve the sentence imposed upon them, failing which the
learned Trial Court to get them arrested to serve the sentence.
Trial Court record be sent back along with the copy of this
judgment. Intimation be sent to the Superintendent Jail.
(SUNITA GUPTA)
JUDGE
(KAILASH GAMBHIR)
JUDGE
SEPTEMBER 05, 2014/rd
